No Straight Scooters At Libby Trial

David Corn is the Washington editor of The Nation and the co-author, along with Michael Isikoff, of Hubris: The Inside Story of Spin, Scandal and the Selling of the Iraq War. He is covering the I. Lewis "Scooter" Libby trial for The Nation.

Criminal trials are not designed to produce truth. They produce winners and losers. The prosecution and defense each present a version of reality—which can be highly selective—and a jury decides which side is more convincing. Consequently, anyone who expected the trial of I. Lewis "Scooter" Libby to yield new information about the CIA leak scandal and clarify what happened has reason (so far) to be disappointed. The trial—which is at the halfway point—has probably raised (or intensified) more questions than it has answered.

Several of those questions concern Vice President Dick Cheney, whom Libby served as chief of staff. Special prosecutor Patrick Fitzgerald and Libby’s defense lawyers have repeatedly referred to a note that Libby wrote shortly before June 12, 2003. At the time, Cheney’s office was concerned about an earlier media report that revealed that an unnamed former ambassador had been sent to Niger in February 2002 to check out the allegation that Iraq had sought uranium there and had concluded the charge was probably false. (George W. Bush had used this allegation in his 2003 State of the Union speech to make the case for war.) And now there was a reporter from The Washington Post looking further into the story—especially any connections between the office of the vice president and the trip of the unnamed ambassador.

With Cheney’s office pondering how to deal with this reporter, Cheney got into the picture and gathered information on the trip. In a phone call, according to this note from Libby’s files, Cheney told Libby that while he had not known anything about this mission, the trip "took place at our behest"—meaning the former diplomat was sent to Niger because Cheney had asked his intelligence briefer about the uranium-shopping charge. Cheney also told Libby that the wife of this former ambassador (who would later be identified as Joseph Wilson) worked at the Counterproliferation Division, a unit within the CIA’s clandestine operations division.

So here was the veep doing his own opposition research and reporting the results to an underling. Where and how did Cheney get this material? From the CIA, Libby later told investigators. But that’s all we know. Did Cheney learn anything about what the wife did at the CIA? Did he discuss her with anyone else other than Libby? Why was he doing his own legwork?

Cheney has not been called as a witness by the prosecution, so these—and other questions—have gone unanswered. Fitzgerald made a "tactical decision" not put the vice president on the stand, one close observer of the case said. Should Libby’s lawyers call Cheney as a witness, Fitzgerald might be able to ask about some of this. Yet at this stage it is not certain that Libby’s lawyers will ask Cheney to hop on down to the courthouse. (What’s he going to say? That, trust me, Libby is a man of honesty and integrity? Or, that Libby was too busy helping me run the Iraq war to testify accurately when he was questioned by the FBI and the grand jury?) The trial could end without any explanation of Cheney’s intelligence gathering.

And here’s another Cheney mystery unlikely to be resolved. When FBI agent Deborah Bond, who worked on the CIA leak investigation, was on the witness stand, she testified that Libby told the FBI that he believed he might have talked with Cheney at some point about disclosing Valerie Wilson’s CIA connection to the press—apparently as part of the White House effort to undercut Wilson and his claim that the Bush administration had twisted the prewar intelligence. But Libby told the FBI he wasn’t sure such a conversation happened.

That was almost a bombshell. Had Cheney and Libby held such a discussion, a prosecutor might wonder if they had conspired to leak classified information (Valerie Wilson’s CIA employment status was classified) or to break the law (leaking information that discloses a clandestine CIA officer can be a criminal violation if the government official doing the leaking knows the officer is under cover). But Libby had merely provided the investigators a tidbit—a tantalizing lead. And the trial has produced no other information on this matter.

One of the biggest riddles to come out of the trial concerns former White House press secretary Ari Fleischer: did he or did he not leak information about Valerie Wilson to reporters? On the stand as a witness for the prosecution, Fleischer confessed. He said that on July 11, 2003—five days after Joseph Wilson outed himself as the unnamed ambassador in an op-ed piece claiming he had inside information proving the White House had manipulated the prewar intelligence—he (Fleischer) told David Gregory of NBC News and John Dickerson, then a correspondent for Time , that Wilson’s wife worked at the CIA. Fleischer was apparently leaking this information to spur questions about the legitimacy and importance of Wilson’s trip to Africa. But Dickerson says the leak didn’t happen—at least, not to him.

Dickerson has previously written about his July 11 conversation with Fleischer and a discussion he had that day with Dan Bartlett, then the White House communications director. According to Dickerson, Fleischer and Bartlett both encouraged him to look into who had sent Wilson to Niger, suggesting the trip had been a minor-league mission. (They believed it had been Wilson’s wife, who was a mid-level officer at the CIA.) Neither man, Dickerson maintains, told him that Wilson’s wife was a CIA employee.

In the Fleischer-versus-Dickerson sideshow, Dickerson has the edge in credibility. (Connection declared: Dickerson and I have been friendly with one another for years.) Dickerson is, of course, not Ari Fleischer—which means he has not spent most of his adult years spinning for politicians. But Dickerson is backed up by internal Time communications.

On July 11—the day Fleischer supposedly leaked to Dickerson—Dickerson sent what’s known as a "file" to the national desk of Time and reported what Bush officials (meaning Fleischer and Bartlett) were telling him that day during a presidential trip to Africa:

On background WH officials were dissing Wilson. They suggested he was sent on his mission by a low level person at the agency and denied that Cheney was ever involved—the CIA just put Wilson into action based on a Cheney inquiry but the Veep didn’t know. The Vice President was never told of Wilson’s findings.

There was nothing in the file about Wilson’s wife. Days later, after Valerie Wilson’s CIA cover had been blown in a column by Robert Novak, Time was considering posting a story on the Wilson controversy on its website, and Dickerson sent an email to fellow Time correspondent Matt Cooper, who was the lead writer on the piece. Dickerson wrote this time:

On background both Ari and Bartlett [last week] were describing the CIA folks who dispatched Wilson as "low level."

The email and file are clear: Dickerson was not told by Fleischer that Wilson’s wife worked at the CIA. Dickerson also recalls being surprised when Cooper told him on July 11 that Karl Rove had told him that Wilson’s wife was a CIA employee.

So why would Fleischer—who pleaded the Fifth Amendment and was granted immunity before he cooperated with Fitzgerald’s investigation—lie about committing a leak (which might have been a criminal offense) that he didn’t commit? There are some possible explanations. Perhaps Fleischer did tell Gregory but not Dickerson—and Gregory decided not to report this information. (Gregory did not reply to an email I sent him about this, and he has said nothing publicly about Fleischer’s testimony.) Or, as one journalist covering the trial speculated, "Ari might feel so guilty that he believes he leaked the secret even if he only suggested there might be a secret."

It’s hard to figure. But one thing is certain: neither side in the trial wants to deal with the Fleischer-Dickerson disparity. The prosecution does not want to see the credibility of a key witness undermined. Fitzgerald has made great use of Fleischer’s testimony that Libby told him about Valerie Wilson and her CIA employment days before Libby claims he learned about it during a phone conversation with "Meet the Press" host Tim Russert. (Libby’s claim is that he completely forgot that Cheney had told him about Wilson’s wife and her CIA employment in early June 2003 and then learned it "anew" a month later from Russert.)

The defense wants to keep the Fleischer-Gregory leak alive. Russert has said he knew nothing about Wilson’s wife and did not tell Libby anything about her. But Libby’s lawyers have suggested that Russert might have heard about Wilson’s wife from Gregory after Fleischer leaked to Gregory and that Russert might have then told Libby about her. It’s a stretch for all sorts of reasons. But Libby’s attorneys are coming up with lots of wild theories to help save their client—and perhaps confuse the jury. In any event, they have no interest in calling Dickerson to the stand to challenge Fleischer and create doubt about whether or not Fleischer leaked.

Was Fleischer—in addition to Karl Rove, Richard Armitage and Libby—an administration leaker in the Valerie Wilson case? The trial is not likely to resolve the matter (much to Dickerson’s frustration). This all goes to show that criminal trials are no substitutes for, say, congressional investigations. Fitzgerald was not assigned the mission of uncovering the truth and presenting it to the public. His job was to determine if any crimes were broken and, if so, prosecute accordingly. When the trial is done, a host of questions about the scandal—questions concerning Cheney, Rove, George W. Bush and others—will remain.